Module – 02 - The Delegation Doctrine
Readings
Text: Chapter 2 to page 41
Learning Objectives – Delegation Doctrine
Learn what delegations that the Court was concerned with.
Learn why did this became an issue in the 1930s.
Learn why agencies are seen as hybrids of all three branches of government.
Learn why the court felt it had to accept these delegations despite there being no
clear authorization under the constitution.
Learn how the court now analyzes the delegation question.
Learn the current limits on the delegation of power to agencies.
What is the Delegation Doctrine Problem?
Can Congress delegate legislative or judicial power to an executive branch
agency?
The Constitution is silent on this issue.
The United States Supreme Court initially found such delegations to violate
separation of powers and struck down several pieces of New Deal legislation.
Shifting the Question
Under the old theory, an improper delegation resulted in an unconstitutional law,
thus leaving the agency no room work around the problem.
The "intelligible principle" test.
This shifts the test to whether Congress provided sufficient direct to the
agency in the law delegating the power so as to limit the agency’s actions to
those that would not violate separation of powers.
Thus the question becomes whether the statute provides enough guidance for
the courts to review the agency action and assure itself that the action is within
the intent of Congress.
What is an Intelligible Principle?
Specific guidance is best
Congress will provide very specific guidance if it wants to limit agency
discretion - the ADA
General/ambiguous guidance is also usually OK
‘‘in the public interest"
Depends on whether context can provide meaning
We will explore this in the Chevron and FDA cigarette cases
Judicial Review as a Check on Delegated Powers
There is a right of judicial review of rules to determine if the agency has the legal
authority to issue them and if they properly supported by the record.
There is a constitutional right to due process protections in adjudications, and
usually a right to judicial review of the decision.
How much judicial power can be delegated to an agency?
Commodity Futures Trading Commn. v. Schor, 478 U.S. 833 (1986)
[1] “the extent to which the ‘essential attributes of judicial power’ are reserved
to Article III courts, and
[2] conversely, the extent to which the non-Article III forum exercises the
range of jurisdiction and powers normally vested only in Article III courts,
[3] the origins and importance of the right to be adjudicated, and
[4] the concerns that drove Congress to depart from the requirements of
Article III.
The core question is whether the administrative law judge (ALJ) is acting in an
area reserved to an Article III.
The court is very unwilling to find adjudications exceed constitutional
authority under this test.
This may be because Congress has not passed laws which test the outer
limits of agency authority
There are state law fights over this - Wooley
There are limits on the transformation of criminal matters into agency
adjudications
Traffic court can be civil, but only if there is no jail time
Large civil fines push the edge, especially if there are also criminal
penalties for the same act
Administrative detentions are OK, but not for punishment
Tuberculosis, denial of bail, mental health commitments
Guantanamo Bay detentions are administrative
Evaluation Questions
Why didn’t the drafters of U. S. Constitution feel the need to lay out clear
guidelines for large federal governmental system?
Where did government happen in the early constitutional period?
When did the federal government become a major source of regulation?
At one point, the United States Supreme Court was divided over whether
legislative and judicial power can be delegated to agencies. The court eventually
accepted the constitutionality of delegating these powers to agencies and the
question shifted to whether congress has properly done the delegation.
What is the modern test for whether the delegation of power to an agency has
been properly done?
How is this test applied by the courts?
How would you apply this test to a rulemaking?
How would you apply this test to an adjudication?
(You will not be able to fully answer these questions until you know more
about both processes.)
If the statute delegating the power to the agency is general - “protect us from
dangerous diseases” - what can the court look to in deciding if there is enough
background to review the agency’s actions?
If the court cannot find enough evidence of congressional intent, does the court
treat it as an unconstitutional delegation or is there now another solution?
May Congress delegate the power to adjudicate criminal penalties to agencies?
Why are criminal penalties limited to Article III courts?
If a city wants to have traffic tickets adjudicated by an ALJ, rather than a
municipal judge, how must the city change the penalties?
What rights will the defendant lose when a criminal matter is transformed to an
administrative review?
(You will need to know more about adjudications to answer this question.)